Judicial Review of Prince Charles Correspondence Veto Fails

Posted on | by Christopher Knight

A three judge Divisional Court comprised of Lord Judge CJ, Davis LJ and Globe J has refused the application of a Guardian journalist to judicially review the exercise by the Attorney General of the right of veto under section 53 of the Freedom of Information Act 2000.

The background to R (Evans) v HM Attorney General [2013] EWHC 1960 (Admin) is the decision of the Upper Tribunal ([2012] UKUT 313 (AAC); [2012] Info LR 352) that correspondence between the Prince of Wales and various Government departments was not exempt from disclosure under freedom of information legislation. Following the Upper Tribunal decision the Attorney General issued a veto under section 53, effectively overriding the decision of the Upper Tribunal.

This case is the first time a section 53 veto has been judicially reviewed.

Jonathan Swift QC and Julian Milford appeared for the Attorney General. Timothy Pitt-Payne QC appeared for the Information Commissioner as an interested party.

Further analysis will doubtless follow.

Christopher Knight

A Search (Engine) for Enforcement? (Yes, Google again…sigh.)

Posted on | by Christopher Knight

In a move apparently carefully designed to hurt this blog’s rankings in the leading search engine algorithm, Panopticon must – yet again – note Google’s noble efforts to single-handedly ensure the development of data protection and privacy law.

Robin Hopkins has noted the AG’s Opinion on Google and the right to be forgotten case. I have noted the enforcement action taken by the ICO against Google in relation to the data harvested by its Street View cars.

Readers with marginally longer memories (or an expert search engine) may recall my blogging that on 20 June the French data protection agency issued a statement in relation to its investigation into Google’s privacy policy, announcing that it was taking enforcement action following a Europe-wide series of investigation which the French had spearheaded. I noted that the ICO had yet to announce its own decision.

Well, on 4 July, the ICO did announce its decision. It too has written to Google to inform the company that its privacy policy raises serious questions of non-compliance with the Data Protection Act 1998 and Google has been given until 20 September to amend the policy in a compliant manner or face formal enforcement action.

The ICO’s press release is here, and the text of their announcement is:

“We have today written to Google to confirm our findings relating to the update of the company’s privacy policy. In our letter we confirm that its updated privacy policy raises serious questions about its compliance with the UK Data Protection Act.

In particular, we believe that the updated policy does not provide sufficient information to enable UK users of Google’s services to understand how their data will be used across all of the company’s products.

Google must now amend their privacy policy to make it more informative for individual service users. Failure to take the necessary action to improve the policies compliance with the Data Protection Act by 20 September will leave the company open to the possibility of formal enforcement action.”

Google’s core values famously included the phrase “Don’t be evil”. Potential breaches of the DPA are perhaps not quite in that league (or at least, not usually), but Google is certainly having a difficult time finding its way through the DPA thicket. If only they could just Google the answer…

Christopher Knight

Yet more on Article 10 ECHR and FOIA

Posted on | by Robin Hopkins

The question of whether the right to freedom of expression conferred by Article 10 of the European Convention on Human Rights has a bearing on the Freedom of Information Act 2000 (particularly as regards absolute exemptions) is an interesting and important one. The Supreme Court will address it later this year in the Kennedy litigation.

In the meantime, there is free expression aplenty on this issue within the Panopticon fold. Joseph Barrett’s post of earlier today is not the only example; Christopher Knight’s recent piece in Public Law is a must-read. The reference is: CJS Knight, ‘Article 10 and a Right of Access to Information’ [2013] PL 468.

Robin Hopkins

Article 10 and a human right to access information (Yes, again…sigh)

Posted on | by Joe Barrett

Article 10 of the European Convention on Human Rights (“the ECHR”) does confer a right of access to information held by public bodies.

So, at least, says the Second Section of the European Court of Human Rights at §§20 and 24 of its judgment in Youth Initiative for Human Rights v Serbia, Application no 48135, 25 June 2013. The Second Section cites the now well-known chamber level judgments of Társaság and Kenedi for this proposition, at the same time entirely ducking the task of explaining or justifying why or how its decision to create this new ‘human right’ is consistent or reconcilable with the Grand Chamber’s prior judgments in Leander and Roche (both of which rejected the submission that Article 10 conferred any such right).

As avid readers of this blog will be aware, this issue has already been the subject of extensive domestic litigation in the UK. While Lord Brown may have thought he gave the argument that Article 10 confers a right of access to documents its quietus in Sugar v BBC, the willingness of the Second Section to flout two Grand Chamber decisions (and, indeed, not even to cite them when doing so) means that the forthcoming Supreme Court hearing in Kennedy v Charity Commrs (in which a smorgasbord of 11KBW members will be appearing) should make for interesting viewing.

One might have thought (and even hoped) that the Strasbourg Court would have learned some lessons about the dangers of merrily ‘discovering’ new ‘human rights’ while ignoring, and refusing to grapple with, inconvenient prior Grand Chamber decisions from the MT and Greens v UK,  Frodl v Austria, Hirst v UK debacle. Apparently not.

The judgment also includes a rather trenchant joint concurring opinion from Judges Sajo and Vucinic, in which those legal luminaries effectively say that they think the Grand Chamber decision in Leander is old hat, at least in so far as it concerns this point.

This view, so it is said by the jointly concurring judges, is supported by the fact that another Grand Chamber judgment (which itself did not have much to say about any of these points), Gillberg v Sweden, did not quote the passage from Leander where the Grand Chamber rejected the submission that Article 10 gives a right to access information. Suffice to say that the jointly concurring judges’ further reasoning in support of their position is of a similar calibre.

What is clear from the first sentence of the joint concurring opinion is that Judges Sajo and Vucinic both think that they are justified in inventing this new ‘human right’, and in the process setting the Strasbourg Court up as the pan-European final appellate court for freedom of information matters, by the need to impose greater transparency on former totalitarian ECHR signatory States.

Joe Barrett

Blair, Bush, Iraq, oil: two new Upper Tribunal decisions

Posted on | by Rachel Kamm

The Upper Tribunal has handed down two decisions on Iraq and section 27 FOIA, which raise some interesting procedural points – FCO v Information Commissioner and Plowden GIA/2474/2012 and Cabinet Office and Information Commissioner v Muttitt GIA/0957/2012.

In Plowden, the disputed information was a letter which was relevant to a telephone call on 12 March 2003 between Tony Blair and George Bush during which it was said that they had agreed to say that it was the French who had prevented them securing a UN resolution. The Information Commissioner had ordered the FCO to disclose the information provided by Mr Blair to Mr Bush, but not also the information provided by Mr Bush to Mr Blair. The Tribunal broadly agreed with the Information Commissioner, deciding the appeal under sections 27(1) (international relations) and 35(1)(b) (formulation of Government policy) of the Freedom of Information Act 2000. The Upper Tribunal first considered two preliminary matters, which are of general importance:

  1. Closed hearings. Judge Jacobs found that he could have set aside the Tribunal’s decision on ground that evidence had been given in closed session which could have been given in open session. He emphasised that as much evidence as possible should be given in open session and that, after evidence has been given in closed session, the other party should be told of any evidence that could properly be disclosed (paragraph 10).
  2. Respect for the Tribunal’s expertise. The Upper Tribunal generally will be reluctant to interfere with the (specialist fact-finding) First-tier Tribunal’s assessment of the public interest (paragraph 11). However, less respect will be due where the Tribunal does not have relevant specialist knowledge, for example in relation to the diplomatic consequences of disclosure (paragraph 12).

Having dealt with those preliminary issues, Judge Jacobs went on to set aside the First-tier Tribunal’s decision. It had failed to take account of the benefits of disclosure when assessing the public interest. It had also erred in considering the information line by line, instead of as a package; it was unrealistic to isolate one side of a conversation from the other. The appeal was remitted to the First-tier Tribunal for rehearing. To comply with Article 6 ECHR, that rehearing will be a full reconsideration of the issues which were before the Information Commissioner and it will not be limited to arguments raised by the appellant (paragraph 18).

Judge Jacobs had considered section 27 (international relations) a month earlier, in the Muttitt case. Again, this raised a preliminary issue of general procedural importance. Judge Jacobs found that the parties were not entitled to rely on the reasons given by the First-tier Tribunal for refusing permission to appeal (paragraph 4). These did not supplement the original reasons given by the Tribunal on determining the appeal, which was the decision under challenge. Turning to the substantive issues in the appeal, the disputed documents related to a vist by Mr Blair to Iraq in May 2006. Judge Jacobs found that the Tribunal had erred in law when ordering disclosure, in that it had failed to take into account the nature of the information (in contrast to its content). Reading the First-tier Tribunanl’s reasons as a whole, either it had failed to take account of the circumstances in which the documents came into existence or it had failed to give adequate reasons for its analysis of the information in light of those circumstances.  Judge Jacobs set aside the decision and remitted it for a rehearing of all of the issues raised by the appeal.

In Plowden, Julian Milford of 11KBW was led by James Eadie QC and represented the FCO, with Robin Hopkins of 11KBW representing the Information Commissioner.  In Muttitt, Julian Milford represented the Cabinet Office, Robin Hopkins represented Mr Muttitt and Ben Hooper of 11KBW prepared a written submission on behalf of the Information Commissioner.

Rachel Kamm, 11KBW

Google and data protection: no such thing as the ‘right to be forgotten’

Posted on | by Robin Hopkins

Chris Knight has blogged recently about enforcement action against Google by European Data Protection authorities (but not yet the UK’s ICO). I blogged last month about a German case (BGH, VI ZR 269/12 of 14th May 2013) concerning Google’s ‘autocomplete’ function, and earlier this year about the Google Spain case (Case C‑131/12). The latter arises out of complaints made to that authority by a number of Spanish citizens whose names, when Googled, generated results linking them to allegedly false, inaccurate or out-of-date information (contrary to the data protection principles) – for example an old story mentioning a surgeon’s being charged with criminal negligence, without mentioning that he had been acquitted. The Spanish authority ordered Google to remove the offending entries. Google challenged this order, arguing that it was for the authors or publishers of those websites to remedy such matters. The case was referred to the CJEU by the Spanish courts.

Advocate General Jääskinen this week issued his opinion in this case.

The first point concerns territorial jurisdiction. Google claims that no processing of personal data relating to its search engine takes place in Spain. Google Spain acts merely as commercial representative of Google for its advertising functions. In this capacity it has taken responsibility for the processing of personal data relating to its Spanish advertising customers. The Advocate General has disagreed with Google on this point. His view is that national data protection legislation is applicable to a search engine provider when it sets up in a member state, for the promotion and sale of advertising space on the search engine, an office which orientates its activity towards the inhabitants of that state.

The second point is substantive, and is good news for Google. The Advocate General says that Google is not generally to be considered – either in law or in fact – as a ‘data controller’ of the personal data appearing on web pages it processes. It has no control over the content included on third party web pages and cannot even distinguish between personal data and other data on those pages.

Thirdly, the Advocate General tells us that there is no such thing as the so-called “right to be forgotten” (a favourite theme of debates on the work-in-progress new Data Protection Regulation) under the current Directive. The Directive offers accuracy as to safeguards and so on, but Google had not itself said anything inaccurate here. At paragraph 108 of his opinion, the Advocate General says this:

“… I consider that the Directive does not provide for a general right to be forgotten in the sense that a data subject is entitled to restrict or terminate dissemination of personal data that he considers to be harmful or contrary to his interests. The purpose of processing and the interests served by it, when compared to those of the data subject, are the criteria to be applied when data is processed without the subject’s consent, and not the subjective preferences of the latter. A subjective preference alone does not amount to a compelling legitimate ground within the meaning of Article 14(a) of the Directive.”

It remains to be seen of course whether the Court agrees with the Advocate General. The territorial issue and the ‘data controller’ question are of great significance to Google’s business model – and to those whose businesses face similar issues. The point about objectivity rather than subjectivity being the essential yardstick for compliance with data protection standards is potentially of even wider application.

“This is a good opinion for free expression,” Bill Echikson, a spokesman for Google, said in an e-mailed statement reported by Bloomberg.

Robin Hopkins